Citation Nr: 1335959 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 05-24 643A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a lumbar spine disability. 3. Entitlement to service connection for a psychiatric disability, to include as secondary to a spine disability. 4. Entitlement to compensation under the provisions of 38 U.S.C. 1151 for pancreatitis with diabetes mellitus, diabetic peripheral neuropathy of the lower extremities, tremors, and low testosterone. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1959 to January 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2004 and December 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. This matter has previously been before the Board, most recently in September 2011, at which time the Board remanded the claims for additional development of the evidence of record. The Board finds that there has been substantial compliance with the remand instructions with respect to the Veteran's claims of entitlement to service connection for a cervical and lumbar spine disability. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). In August 2013, the Veteran submitted a statement to the Board without a waiver of consideration of that evidence by the Agency of Original Jurisdiction. The Board finds that a waiver is unnecessary because the newly-received evidence is cumulative and duplicative of the assertions previously associated with the claims file. 38 C.F.R. § 20.1304(c) (2012). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for a psychiatric disability and entitlement to compensation under the provisions of 38 U.S.C. 1151 are REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. A cervical spine disability was not shown during service or for many years thereafter, and the weight of the probative evidence is against a finding that a current cervical spine disability is related either to active service or to the Veteran's service-connected pes planus. 2. A lumbar spine disability was not shown during service or for many years thereafter, and the weight of the probative evidence is against a finding that a current lumbar spine disability is related either to active service or to the Veteran's service-connected pes planus. CONCLUSIONS OF LAW 1. A cervical spine disability was not incurred in or aggravated by active service, it is not the result of or aggravated by a service-connected disability, and a relationship between a cervical spine disability and active service may not be presumed. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2012). 2. A lumbar spine disability was not incurred in or aggravated by active service, it is not the result of or aggravated by a service-connected disability, and a relationship between a lumbar spine disability and active service may not be presumed. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board must provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist VA has a duty to notify a Veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). VA also has a duty to assist Veterans in the development of claims. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will to provide; and (3) that the claimant is expected to provide. This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice should include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Correspondence dated February 2007 provided the Veteran with all required notice, and the Board notes that the Veteran has received several readjudications of his claims since that time. The Board finds that the duty to notify has been satisfied, and that no further notice is necessary. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). The Veteran's service medical records, VA medical treatment records, and private treatment records have been obtained, to the extent available. While VA attempted to obtain records associated with the Veteran's claim for disability benefits from the Social Security Administration (SSA), in March 2007, VA was informed that records associated with the Veteran's SSA claim had been destroyed. VA has no further duty to seek to obtain that which does not exist. Counts v. Brown, 6 Vet. App. 473 (1994); Porter v. Brown, 5 Vet. App. 233 (1993). There is no indication that there is any other relevant evidence that is available and not part of the claims file. The Veteran was provided with a VA examination of his spine in February 2013, and an addendum opinion regarding the relationship between his spine disabilities and his service-connected pes planus was provided in July 2013. The VA examiner reviewed the Veteran's claim file, past medical history, recorded the Veteran's current complaints and history, conducted an appropriate evaluation, and provided an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The VA examination report and addendum are therefore adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2 (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran presented testimony before the undersigned in an August 2008 hearing, and a transcript of that hearing is of record. The Veteran testified before a Decision Review Officer in September 2012, and a transcript of that hearing is also of record. Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Service Connection The Veteran claims that he suffers from a cervical and lumbar spine disability either directly as a result of an in-service incident or secondary to his service-connected pes planus. The Board will analyze the claims together because they involve a similar application of law to fact. In general, service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be granted for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2012); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." For certain chronic diseases, set forth in 38 C.F.R. § 3.309(a), a continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is among the chronic diseases listed in 38 C.F.R. § 3.309(a), and it therefore may be established based on a continuity of symptomatology. Furthermore, service incurrence will be presumed for certain chronic diseases, including arthritis, if manifest to a compensable degree within the year after active service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012); Harder v. Brown, 5 Vet. App. 183 (1993). Additional disability resulting from the aggravation of a non-service-connected disability by a service-connected disability is also service connected. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). To establish service connection for a claimed disability on a secondary basis, there must be medical evidence of a current disability, a service-connected disability, and medical evidence of a nexus between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). The medical evidence shows that the Veteran has been diagnosed with degenerative arthritis of both the cervical and lumbar spine. With respect whether in-service event, disease, or injury is shown, the Veteran received treatment in May 1961 for a low back strain. The Veteran's service treatment records are silent for any complaint of, or treatment for, cervical spine pain. The Veteran has otherwise consistently alleged that he was involved in an in-service truck accident in which he was thrown from a truck, injuring his back and neck. While the Board finds no notation of this accident in the Veteran's personnel records or service treatment records, the Board acknowledges that the Veteran is competent to attest to his in-service experiences. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board accepts as credible the Veteran's testimony that he fell from a truck in-service, and thus an in-service event is shown. Regarding medical evidence of nexus, or the determination of the relationship, if any, between the Veteran's current disability and either his active duty service or his service-connected pes planus, in August 2005, Dr. M.M. stated that disc degeneration is a disease associated with the aging process. Dr. M.M. stated that it was difficult to look at an MRI and determine how long the underlying condition had existed. Dr. M.M. then stated that he "basically [relies on] what the patient states to [him]." Dr. M.M. concluded that if the Veteran had a previous injury, then the Veteran had a pre-existing disc degeneration, "which after the injury came to a reality." The Veteran underwent an examination of his cervical and lumbar spine in February 2013. The examiner considered the Veteran's contention that he was thrown from a truck in-service, at which time he injured his neck and back. The examiner opined that the Veteran's cervical and lumbar spine conditions were less likely than not incurred in or caused by the Veteran's claimed in-service injury. As a rationale for that opinion, the examiner noted that the Veteran once received treatment in-service. The examiner noted that the Veteran's in-service treatment was too distant to connect with his current cervical and lumbar spine conditions. Instead, the examiner noted that the Veteran's lumbar spine condition was age-related. The examiner observed that the Veteran was 77 years old at the time of the examination, and the examiner stated that findings of degenerative changes in the spine were universal. Thus, the examiner concluded, the Veteran's degenerative spine conditions were age-related and not related to an in-service incident. In a July 2013 addendum opinion, a VA examiner stated that the Veteran's cervical and lumbar spine disabilities were not permanently aggravated by the Veteran's service-connected pes planus. In rendering that opinion, the examiner acknowledged that the Veteran had pain in his feet bilaterally. The examiner noted, however, that the Veteran had no limp, and he therefore had no weight-shifting or altered body mechanics with increased stress to his lumbar or cervical spine. The examiner noted that there were no recorded cases in the literature in which pes planus caused a cervical or lumbar spine condition. With regard to the July 2013 addendum, the Veteran has contended that "there is no way that any medical person could say that [the Veteran does not] have 'an altered gait that could mechanically stress other areas of [his] body' as a result of [his] flat feet." While the Board acknowledges that contention, the etiological relationship between the Veteran's flat feet and his claimed spine conditions is a matter outside the realm of knowledge of a lay observer, and the Board therefore affords the VA examiner's opinion with greater probative weight than the Veteran's current assertions regarding the relationship between his flat feet and his claimed spine conditions. Upon review of the medical evidence of record, the Board places little probative weight on the August 2005 statement of Dr. M.M. Dr. M.M. noted that his opinion regarding the duration of the Veteran's spine symptoms relied solely on the Veteran's own account. The Board notes that a mere transcription of lay history, unenhanced by any additional medical comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406 (1995). The Board finds that Dr. M.M.'s opinion has less probative weight. The Board affords the February 2013 and July 2013 opinions with great probative weight because they offered well-reasoned conclusions supported by the medical evidence of record. To the extent that the Veteran believes that his cervical and lumbar spine disabilities are related either to his service or to his service-connected pes planus, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge and experiences through his senses. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA provided the Veteran with an examination based in part on the competency of those observations. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, as to the etiology of a spine disability, the issue of causation of a medical condition is a medical determination outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, although the Board has carefully considered the lay contentions of record suggesting that the Veteran's cervical and lumbar spine disabilities are related either to his military service or to his service-connected pes planus, the Board ultimately affords the objective medical evidence of record, which is against finding a connection between the Veteran's conditions and his service or his pes planus, greater probative weight than the lay opinions. The Board has also considered whether the Veteran has presented a continuity of symptomatology associated with his cervical and lumbar spine disability, and it finds that he has not done so. There is no competent medical evidence suggesting that the Veteran was treated after service for a chronic cervical or lumbar spine disability until August 1981, or approximately 19 years after separation from service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition now raised). Furthermore, in the August 1981 treatment record, the Veteran stated that he had experienced low back pain since changing a rusty spring on a tractor in 1973, or approximately 11 years after separation from service. In a separate August 1981 treatment record, the Veteran again indicated that he had experienced low back pain since 1973. Consistent with those notations, in March 2008, the Veteran's brother stated that the Veteran was transported to the hospital with "back problems" in April 1973, and he made no mention of the Veteran's service. At his September 2012 hearing before a Decision Review Officer, the Veteran stated that he first received treatment for his spine after service in 1973, after irritating his spine. Thus, while the Board has considered the lay contentions that the Veteran experienced spine problems soon after military service, the Board finds that the weight of the evidence, including the Veteran's own past contentions to medical care providers, does not support a finding of continuous symptoms since active duty. The Board finds that Veteran's more recent assertions relating the back disability to service to be less credible because of contradictory prior statements of record associating back pain with a 1973 post-service incident. The Board finds that the Veteran's allegations of continuity of symptomatology are not credible, and the medical nexus element cannot be met via continuity of symptomatology. Furthermore, the Board finds that arthritis of the cervical and lumbar spine was not shown within one year following separation from service. Therefore, presumptive service connection is not warranted. The Board acknowledges that VA is statutorily required to resolve reasonable doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. However, the preponderance of the evidence is against the claims. Therefore, the claims must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for a cervical spine disability is denied. Service connection for a lumbar spine disability is denied. REMAND As the Board noted in its September 2011 Remand, with regard to the issues of entitlement to service connection for a psychiatric disability and entitlement to compensation under the provisions of 38 U.S.C. § 1151, the Veteran indicated on his September 2009 substantive appeal that he desired a hearing before the Board. The Veteran's August 2008 hearing before the Board addressed only the issues of entitlement to service connection for cervical and lumbar spine disabilities. The Veteran has not been provided a hearing before the Board with regard to the issues of entitlement to service connection for a psychiatric disability and entitlement to compensation under the provisions of 38 U.S.C. 1151 for pancreatitis with diabetes mellitus, diabetic peripheral neuropathy of the lower extremities, tremors, and low testosterone. Therefore, he should be scheduled for a hearing on those issues. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested. Accordingly, the case is REMANDED for the following action: Schedule the Veteran for a hearing before a Veterans Law Judge at the RO in Huntington, West Virginia addressing the issues of entitlement to service connection for a psychiatric disability and entitlement to compensation under the provisions of 38 U.S.C. 1151. The Veteran has the right to submit additional evidence and argument on the matters that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012). ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs